Analysis: How to say no to the President?

Posted Wed, October 10th, 2007 2:19 pm by Lyle Denniston

The Supreme Court, deeply fascinated with its own role in an interconnected world legal order, spent extra time on Wednesday examining the question of how to say no to the President on a treaty matter and, if it does, to do so without harming the Chief Executive’s power to speak for the nation in the global community. It was apparent that, if the case of Medellin v. Texas (06-984) had come to the Court without presidential involvement, it would have been easy to decide — in fact, the issue in that context may already have been effectively decided last year. But President Bush put his authority at the very center of it, and heavy complications have followed. The Justices’ keen interest in those complications led Chief Justice John G. Roberts, Jr., to let the scheduled one-hour hearing Wednesday run on for an added 26 minutes — an especially rare gesture.

With cross-currents of constitutional and international law flowing freely, what appeared to be a majority of the Justices looked askance at a Presidential memo in February 2005, directing nine U.S. states to give 51 Mexican nationals convicted of crimes in those states a new chance to test their rights under an international treaty, the Vienna Convention on Consular Relations. What was troubling those Justices the most, it seemed, was that the President had sought to make binding a ruling by the World Court that would otherwise not have controlling effect on states’ ciminal procedures. That was worrisome for two reasons: it might intrude on the Court’s role to say what the legal meaning and effect of treaties is, and it might empower the World Court, in effect, to dictate the substance of American law.

This is not a Court (with a couple of exceptions among its members) that is genuinely fond of drawing meaning for American law from foreign sources. That skepticism found new expression in the Medellin case as several of the Justices looked at the World Court as a foreign entity that, through the President’s intervention, was intruding into domestic law — perhaps even at the expense of the Supreme Court’s power to say what the law is. Justice Antonin Scalia, for example, said he saw a constitutional problem with “giving an international body the authority to determine U.S. federal law. I am rather jealous of that authority. I don’t know on what basis we allow an international court to decide the content of American law.”

Justice Samuel A. Alito, Jr., said the effect of the Bush Administration’s defense of the presidential order that states obey a World Court ruling would be that “the President can take any treaty that is not self-executing and make it binding under federal law.” Solicitor General Paul D. Clement tried, without notable success, to deflect such suggestions. All that President Bush had done in the Mexican nationals’ case, Clement contended, was to make a decision that, for foreign policy reasons, America would comply with the World Court decision to give the Mexicans another review of their cases in state court.

Donald F. Donovan, a New York City attorney representing Mexican national Jose Ernesto Medellin, sought to keep the case within a narrow focus. He argued that all that was at issue was a U.S. obligation under treaties it had signed and embraced to comply with a final ruling of the World Court on remedies for a violation of access to consular officers for accused aliens. President Bush had acted only to meet that obligation, Donovan argued in a refrain repeatedly stated. But he encountered a flurry of hypothetical reasons over broader implications, with the Chief Justice pursuing hypotheticals to test what power would be left to the Supreme Court if the World Court could be made the instrument for declaring American law. If the World Court’s judgment on the Mexican nationals’ legal rights here were binding federal law inside the U.S., Roberts wondered, would the Justices have any authority to second-guess the content of that law? “We would have no authority to review the judgment itself?” he asked with notable skepticism.

Justice Anthony M. Kennedy also seem puzzled whether the Supreme Court could interpret the scope of a World Court ruling if it were ambiguous in any significant way. And Kennedy twice raised concerns about whether the President could “displace the authority” of the Court to interpret judgments of the World Court. Both Kennedy and Roberts were told, in response, by Donovan that a court ruling to enforce the World Court judgment would by itself constitute the application of federal law — here, the federal law of carrying out an obligation undertaken by treaty. The World Court ruling itself, the attorney said, is federal law — binding on the states by virtue of the Supremacy Clause, and also binding because the President had concluded through his Article II power to it was in the nation’s interest to comply with the World Court judgment.

The hearing did highlight a difference between Medellin’s lawyer and Clement, even though they are on the same side. Clement stressed that the government did not support Medellin’s argument that, without the President’s action, the World Court decision would be binding on the state courts in the U.S. “The President’s role is critically important,” the Solicitor General argued. When Justice Kennedy asked about the effect had the President decided not to comply with the World Court decision, Clement responded: “We would be on the other side.” Clement added that “we don’t think this judgment is enforceable on its own terms.”

Two members of the Court who often talk of the value of looking to foreign law for guidance, Justices Stephen G. Breyer and Ruth Bader Ginsburg, were clearly the most willing on Wednesday to show support for the World Court’s authority and the duty of the U.S. to fulfill its promise of obeying World Court judgments in interpreting the Vienna Convention. Thus, they were the most energetic questioners of Texas’ state Solicitor General, R. Ted Cruz.

Justice Breyer sought Cruz’s response to a simple “chain of logic,” going from the language of the Constitution making treaties “the law of the land,” the U.S. agreement to the Vienna Convention and its agreement to abide by World Court rulings applying that treaty, and then to the requirement of the World Court that states take full account of the Convention’s strictures. Cruz said that Texas did not dispute that treaties were the law of the land, but said that what was at stake here was the action of the President in seeking to make the World Court judgment binding on the states in contradiction to their own laws. The Convention, he said, is not a self-executing treaty, and the President cannot make it so on his own.

Justice Ginsburg repeatedly returned to the basic theme that the U.S. had promised to abide by the World Court’s application of the Vienna Convention. This country, she said, had “accepted the authority of this tribunal, and to be bound to follow its decisions.”

Among the Justices, only David H. Souter spent some time exploring whether the Court could avoid a decision that would reject the President’s authority to implement the World Court judgment by simply ruling, on its own, that the international tribunal’s decision on the Mexican nationals was binding. Questioning Cruz, for example, Souter wondered whether there was any “positive rule, in international or domestic law, which precludes this Court from being the implementing authority” of a World Court decision? The state’s lawyer replied that the Court was “the final authority to determine federal law,” but said that, if it were to do so in the Medellin case, it would have to overrule its ruling of a year ago in the case of Sanchez-Llamas v. Oregon finding that the Vienna Convention does not give foreign nationals a right to claim violation of their Convention rights if such claims are barred by state criminal procedures.

Medellin’s lawyer and the Justice Department take the view that the Sanchez-Llamas decision only dealt with an interpretation of the Convention’s meaning, not with an actual Court judgment in a specific case. Medellin contends, though, that the judgment is binding on the state on its own terms, under the Supremacy Clause, but the government takes the view that it is to be implemented because the President has said so.

The Court is expected to issue its final ruling on the case by late next spring.

Merits Case Pages and Archives

On Monday, the justices met for their September 25 conference. The justices removed Trump v. International Refugee Assistance Project and Trump v. Hawaii from the court's October sitting. We expect orders from this conference on Thursday. The October 2017 term will begin on Monday, October 2. The calendar for the October sitting is available on the court's website.

Major Cases

Trump v. International Refugee Assistance Project(1) Whether respondents’ challenge to the temporary suspension of entry of aliens abroad under Section 2(c) of Executive Order No. 13,780 is justiciable; (2) whether Section 2(c)’s temporary suspension of entry violates the Establishment Clause; (3) whether the global injunction, which rests on alleged injury to a single individual plaintiff, is impermissibly overbroad; and (4) whether the challenges to Section 2(c) became moot on June 14, 2017.

Gill v. Whitford(1) Whether the district court violated Vieth v. Jubelirer when it held that it had the authority to entertain a statewide challenge to Wisconsin’s redistricting plan, instead of requiring a district-by-district analysis; (2) whether the district court violated Vieth when it held that Wisconsin’s redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer; (4) whether the defendants are entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court’s test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.

Carpenter v. United StatesWhether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.

Conference of September 25, 2017

Collins v. Virginia Whether the Fourth Amendment's automobile exception permits a police officer, uninvited and without a warrant, to enter private property, approach a house and search a vehicle parked a few feet from the house.

Butka v. Sessions Whether the U.S. Court of Appeals for the 11th Circuit erred in this case by holding that it had no jurisdiction to review the denial of a motion to reopen by the Board of Immigration Appeals, where the review sought was limited to assessing the legal framework upon which the sua sponte request was made.

National Institute of Family and Life Advocates v. Becerra Whether the free speech clause or the free exercise clause of the First Amendment prohibits California from compelling licensed pro-life centers to post information on how to obtain a state-funded abortion and from compelling unlicensed pro-life centers to disseminate a disclaimer to clients on site and in any print and digital advertising.

On August 16, Judge Jon Newman of the U.S. Court of Appeals for the 2nd Circuit gave a lecture, “The Supreme Court — Then and Now,” in which he compared the Supreme Court today to the court in October Term 1957, when Newman served as a law clerk to Chief Justice Earl Warren.